Tom Harkin

Mr. HARKIN

Mr. HARKIN. I have the floor.

Mr. HARKIN. Mr. President, I will yield to the leader to do that. I ask unanimous consent that when the quorum call is dispensed with, this Senator, the Senator from Iowa, be given the right to the floor at that point in time.

Mr. HARKIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HARKIN. Mr. President, I ask unanimous consent that the privileges of the floor be granted to Lucille Zeph for the pendency of the bill.

Mr. HARKIN. Under the previous arrangement, I further suggest the absence of a quorum.

Mr. HARKIN. I agree with Senator Ashcroft with one provision, if we say ``Senator Harkin retaining the right to the floor when the Senate returns to the Frist-Ashcroft amendment.'' I have the right to the floor now. I had the floor. I just want to make sure when this amendment comes back up that I have the right to the floor.

Mr. HARKIN. OK.

Mr. HARKIN. That last part was not included.

Mr. HARKIN. Come on over. We are all friends.

Mr. HARKIN. Mr. President, the Senator from Tennessee knows I have the highest respect for him. In fact, I have always found him to be a very thoughtful Senator, especially when it comes to the issues of disability policy. When the Senator first came to the Senate, he became chairman of the then-existing Disability Policy Subcommittee in the Labor and Education Committee, and I was his ranking member. I thought he did a great job. As a matter of fact, under his chairmanship, we were able to get through the revisions of the Individuals with Disabilities Education Act, which we had been attempting to do for several years. In fact, it took 3 long years to get all the groups to finally agree on the revisions and the amendments to the Individuals with Disabilities Education Act. I say that as a way of background. The Senator from Tennessee was very heavily involved in that process. We were able to get the bill passed in May, I think it was, of 1997. It was strongly supported in the Senate and in the House, and passed, and was signed into law by the President. My friend from Tennessee gave an example of the students in his home community. He gave an example of eight students, six of whom were disabled, at least under an IEP, as I understand it; and that three, as I understand it, were expelled right away because it was not a manifestation; but then he made the statement that three went right back into the classroom. The Senator, in a private conversation, told me about this once before. If I am not mistaken, was this not during the school year of 1995-1996 or 1996-1997?

Mr. HARKIN. It was 1997-1998. So the regulations under the Individuals with Disabilities Education Act amendments did not go into effect until March of 1999. That is 2 months ago. I say to the Senator from Tennessee that school he is talking about was still operating under the old system. The old system said you could place a child with a disability in an interim educational setting for up to 45 days if the child brought a gun to school. That is the old bill. The new bill says, the one for which the regulations just came out a couple months ago--the Senator is right, a decision is made, and if it is not a manifestation of a disability, they can be expelled immediately. If, however, it is a manifestation of a disability, the child can be placed, under the old bill, for up to 45 days in an interim educational setting, and then if the school officials believe the child is still a danger, if the child is likely to injure himself or others, they can go to an impartial hearing, order that the child be placed for an additional 45 days in the interim educational setting, then at the end of that 45 days, they can do another 45 days, as long as it is decided that child is a danger either to himself or to others. I ask the Senator from Tennessee, the example you gave is under the old bill. The new bill says that at the end of 45 days, the school can go to an impartial hearing officer and keep that child out for another 45 days. I ask the Senator if that is not a correct interpretation?

Mr. HARKIN. I say to the Senator from Tennessee--and surely we can get this right; it may take a little bit of discussion, but I think we can get it right--the situation he just described is true to the point where the child can be put in an alternative setting for up to 45 days. Under the new law, which, I again point out, just went into effect this year, the school can keep that child out not only for 45 days but for another 45 days and another 45 days. All the school has to do is go to the impartial hearing officer and say: This kid brought a gun to school. It is a manifestation of his disability, but under these circumstances, this kid is a danger to these other students and should be kept in an alternative setting for another 45 days. Is it not true that the school can do that? So that if the facts are, as the Senator said, the kid is back in the classroom; obviously the school officials felt the kid was not a danger to anyone and they let him back in the school. So I ask the Senator, is that not local control? The local school officials had to decide that child was not a danger and let him back in. There is no other way it could happen. I ask the Senator if that is not so?

Mr. HARKIN. Let me try again. The kid brought the gun----

Mr. HARKIN. Let us look into that.

Mr. HARKIN. Well, let us look at that. I think the Senator said he supports IDEA. He supports the Individuals with Disabilities Education Act. The fact is that we do treat children with disabilities different than we treat other children. Does every child in a school have an IEP, I ask the Senator?

Mr. HARKIN. Let me respond to the Senator on that. I am trying to follow this logically and not to get too inflamed here. If we believe that a child with a disability is treated differently than a child without a disability--we accept that. A child with a disability has an individual education program. There are certain laws that we have passed which if a State wants to accept Federal moneys, they abide by. No local education agency has to abide by the laws of IDEA if they don't want to take the money. Now, they would still have to provide a free and appropriate public education to kids under Federal court rulings. Again, I say to the Senator from Tennessee, that as long as we treat children with disabilities differently, and we do because they are disabled, we then take it to the step that the Senator said. Should we treat a disabled child who brings a gun to school differently from a child who is not disabled? I think that is a good question. At first blush, it might seem to the casual observer that no, they should be treated the same. I say to the Senator from Tennessee, let's take two children. One is a child with no disability, has an IQ of 120, has good grades, comes from a pretty decent family, who all of a sudden gets a mean streak and brings a gun to school. That is one kid. Let's say we have another kid. He has an IQ of 60. He is mentally retarded. He has cerebral palsy. His lifetime has been one of being picked on by other kids and made fun of. Because of IDEA, he is now in a regular classroom. Some kids come up to him and they say, look, junior, we know your old man has a gun at home and he has a couple of pistols. If you don't bring one of those pistols to us tomorrow, we are going to cut your ears off. The kid has an IQ of 60. He is mentally retarded. He has cerebral palsy, maybe even suffers a little bit from schizophrenia, I don't know. The kid is terrified. He goes home. He sneaks the old man's gun. He takes it to these kids, and he gets caught by the principal or someone who sees the gun. Should that child be treated differently than the kid with a 120 IQ, who knew exactly what he was doing and who had a mean streak and brought that gun to school?

Mr. HARKIN. The Senator can say yes. I say no.

Mr. HARKIN. Now, I believe the Senator made a very important point there in his first comment to me. The Senator said that if two kids-- the ones I described--bring a gun to school, they should be treated exactly the same in terms of removal. I agree with the Senator. In terms of removal, they should be treated the same. Today, under IDEA, they are treated the same. I am going to stick with my example of the two kids who bring a gun to school. Right now, under IDEA, the principal can call up the police and say come and get these kids, and they get them and haul them to the police station. They don't care whether the kid is under an IEP or not. I agree with the Senator; in terms of removal, they should be the same. And they are the same today. In terms of getting them out of the classroom immediately, they are treated the same. Where the difference occurs is later on during the 45-day period, where it is examined as to why the kid brought the gun to school, and whether it was a manifestation of his disability or not. I ask my friend from Tennessee this straightforward question: Is it true that under IDEA, as it is today, if a disabled child brings a gun to school and a nondisabled child brings a gun to school, they are both treated the same in terms of removal?

Mr. HARKIN. Let me try again. Let's talk about removal. Talk about day one. Two kids bring a gun to school. One is disabled and one is not. Is it true that the principal can immediately expel both students on that day and get them out of school?

Mr. HARKIN. Will the Senator yield for an observation and again for a question? I say to the Senator from Missouri, again, I don't mind people making a decision one way or another on these things. I hope we base it on factual circumstances. The fact is that what the Senator, my friend from Missouri, just described is the idea in the old law, going back 20 years. We had the 45-day period, at the end of which kids can go back to school. We changed that. The final regulations on that didn't become final until March of this year when we put the 45 days in, at the end of which, if the school officials believe that the child is still a danger, they can go to a hearing officer, and say, hey, because of all these reasons, that kid should be kept out of school for another 45 days. I say to my friend from Tennessee that I don't have that much lack of faith in my school principals and officials. If they look at this kid and say, wait a minute, this kid is a danger, they are going to throw up their hands and say, oh, my gosh. They want to protect their schools, and they are going to go to a hearing officer and say, wait a minute, keep that kid out. So I want to make it clear that what my friend is talking about is the old law. That is all I want to make clear.

Mr. HARKIN. May I ask the Senator another question?

Mr. HARKIN. Does the amendment also not seek services for these kids under paragraph (b), ``ceasing to provide education''?

Mr. HARKIN. It is part of the amendment?

Mr. HARKIN. One of the reasons I think the Senator will find the Parent Teachers Association, Association of Police Chiefs and other police around the country opposing this amendment is they think the worst thing we could possibly do would be to take kids who are severely--emotionally or otherwise--disabled and throw them out on the streets.

Mr. HARKIN. The reality of the situation and the reason we have IDEA--and we hear it all the time; I hear it from my principals, too, I say to my friend from Missouri--sometimes it is tough to put up with the kids with special needs. They need a lot of attention. Sometimes they are a little raucous. Sometimes the principals throw up their hands and want to get them out of the classrooms. The teachers want to get them out of the classrooms. They are hard to deal with. These are kids with disabilities. Time after time, for every story either of my friends relates about principals or others who are at wit's end because of a kid, I can come up with ten other stories of parents with kids who are disabled and how those kids were mistreated in school. The reality of the situation is--and this is only my feeling--if you take two kids, one disabled maybe with a learning disability, maybe with other problems, who has been mainstreamed in school, expel him as you do a regular student and leave it up to the principal to say, OK, you can let him back in when you want, I think that principal will have a lot of pressure on him to let one kid back in, maybe, depending on the circumstances, but that disabled kid, that kid causes a lot of problems, costs a lot of money, we will keep him out. I am just telling Senators that has been the situation for the past 30 to 50 years in this country. That is why we have IDEA. That is why we have individualized education programs for these kids. That is the reality of the situation.